Jurisprudence (Lecture: 11)
Precedent
Meaning of Precedent:
A judicial decision that itself contains a new rule or principle of law.
There exist different parts of the judicial decision e.g. actual decision, ratio decidendi and obiter
dicta.
Actual decision is the decree of the court on the particular dispute arises before the court. It is
binding on the parties to the dispute e.g. 8th amendment is null and void (1989).
Ratio decidendi is underlying principle or reasoning of the decision that is essential to the
settlement of the dispute. It is binding upon the judges in subsequent disputes e.g. parliament
can not amend the basic structure of the constitution (1989).
Obiter dicta is underlying principle of the decision that is not essential to the dispute or mere
opinion of the court. It is not binding upon the lower courts in subsequent cases.
The Doctrine of Precedent:
=> Judicial decision that is reported and cited before the court but not binding to the court. In
other words, judges are not bound by judicial decision. It exists in civil law countries like France
etc.
=> Judicial decision that is reported and cited before the court as well as binding to the court. In
other words, judges are bound by judicial decision. It exists in common law countries like UK,
Bangladesh, India etc. A latin term is relevant with this matter that is Stare Decisis which means
"to abide by the already decided principle."
The ground of the authority of the doctrine of precedent:
A latin term Res judicata pro vertitate accipitur which means the decision of the apex court of
the country must be accepted as truth. An aggrieved party not satisfied with the decision of the
lower court can appeal against the decision in higher court in certain circumstances. But later,
when the dispute is decided by the apex court the party has nothing but to abide by the decision
since there is no higher authority of the apex court of the country.
Kinds of precedent:
Original and declarative precedent: First established precedent or the decision of the first
dispute on a matter is called original precedent whereas the later decision or precedent on the
same matter but different dispute is called declarative precedent.
Authoritative and persuasive precedent: The decision or precedent that is binding to the court
is called authoritative precedent while not binding decision or precedent is persuasive
precedent.
Circumstances that restraint or destroy the binding force of the precedent:
Legislation: When an act of parliament or an ordinance passed later of the precedent contradicts
the precedent or somehow form the act of the parliament or the ordinance, it is understood the
precedent was unlawful, the precedent lose its binding force.
Reversal or overruling: Precedent after reversal or overruling lose its binding force.
Decision in ignorance of statutes: Decision of a court to settle down any dispute made in
ignorance of statutes would not be deemed as a binding precedent.
Decision inconsistent with the decision of the superior court: A decision from the lower court
that contradicts the decision of higher court would not regarded as a precedent in settling down
subsequent cases.
Precedent not fully argued: A precedent or decision of any dispute not fully argued before the
court of law may have no binding force.
Factors tending to increase the binding force of the precedent:
i) When the number of judges of a bench to settle down dispute is larger or
ii) when eminent lawyers or judges are related to settle down the dispute or
iii) when the proportion of the ascending judges are significantly larger or
iv) when the judges settle down the dispute unanimously.
The decision of this dispute or the precedent form this dispute has an increased binding force.
Factors tending to decrease the binding force of the precedent:
i) When the number of judges of a bench to settle down dispute is significantly smaller or
ii) when there is no eminent lawyer to argue the decision of the court or
iii) when the proportion of the ascending judges are closer to the proportion of the descending
judges or
iv) when the argument of the descending judge is strong enough
The decision of this dispute or the precedent form this dispute has a decreased binding force.
Judicial techniques of using the precedent:
Refusal: In case of persuasive precedent, judges can refuse the precedent.
Distinguishing the precedent: Judges by distinguishing the precedent or fact of the precedent
form the pending dispute or fact of the dispute can refuse the precedent.
Reversal: A different decision of the superior court on the same dispute can reverse the
precedent or a judge form superior court on the same dispute can set aside the precedent by a
decision that differs from the decision of lower court.
Overruling: A different decision of the court of the same rank or superior court on the
subsequent disputes can overrule the precedent or a judge form the court of the same rank or
superior court on the subsequent disputes can set aside the precedent by a decision that differs
from the earlier decision.
Do judges make law?
Declarative theory: Judges can not make law but interpret law.
Constitutive theory: Judges can make law.
